from the a-broken-system dept

We've been following the Surfthechannel/Scopelight case since early on, and there have always been serious questions about it. More than three years ago, we were wondering why a private, Hollywood-financed anti-piracy operation called FACT wasn't just able to take part in the raid of Anton Vickerman's house, but also got to take the computers that were seized. A private party should never be able to get the computers of those that they're accusing in a criminal case. Soon after Vickerman was declared guilty, we discussed some anonymous courtroom notes that suggested extremely serious oddities with how the case was conducted -- including (again) FACT more or less running the show, and having trouble keeping important data.

Following Vickerman's sentencing last week, even more info came out about the case that raises incredibly important questions about its validity. Tim Lee over at Ars Technica has gone through the issue in great detail, highlighting how FACT didn't just take part in the raid, but it financed the government agency that did the investigation and then financed and ran the criminal prosecution against Vickerman.

Lee explains that this is an oddity/antiquity of UK law, in which private parties are actually allowed to bring criminal charges against other private parties, rather than (as in the US) needing the government to decide to bring charges. In fact, in this case, government prosecutors expressly refused to bring charges noting that they didn't think there was a case -- information that was kept from Vickerman. From the Crown Prosecution Service:

I understand from [Northumbria Detective Constable] Watkin that there have been no other successful prosecutions that he is aware of where we could point to this type of website being classified as amounting to "making available... by electronic transmission," the legal standard needed to find Vickerman guilty of copyright infringement. At present it appears uncertain if in fact what the suspect has done does infringe this particular legislation. Certainly on the evidence thus far provided it is impossible for me to determine if this is the case and therefore I cannot advise any prosecution on the evidence presented.

The CPS found the whole thing bizarre:

His 'crime' is to make it easier for others to find what is already there. This begs the rather obvious question of why he is being pursued rather than those who actually breach the copyright by displaying the material.

And yet, FACT went through with the case, because of an oddity in UK law that lets a private party pursue a criminal charge if they're willing to finance it. And FACT was more than willing to finance nearly ever aspect of this case, apparently. It did the original "investigation" in which it apparently recorded a key meeting. The two sides dispute what was said in that meeting... but FACT can't seem to find the recording (of course). The report also explains how FACT funded the Bedfordshire Trading Standards Financial Investigations Unit (BTSFIU), officially a government agency, but one that was directly funded by FACT to be its own private police force, and which apparently took the job gleefully.

Of course, you would think that some of this info would get out before a judge, but the judge seemed equally unconcerned with the law, as focused as he was on Vickerman apparently being arrogant. Even more bizarre, the judge didn't seem at all concerned about precedents that went the other way. For example, the TV-Links case, which was quite similar, ended up with an acquittal, so you might think that any reference to it would be in Vickerman's favor. Not in this judge's mind:

TV-Links had already engaged in a similar operation but you believed you could do better. You
pressed on knowing that TV Links had been taken down following the intervention of FACT on
the basis that what it had been doing was unlawful

Yes, you read that right. Even though TV Links was found to be lawful, in this judge's mind, the fact that it had been taken down by FACT (the same group prosecuting this case), should have been evidence to Vickerman that STC was illegal. Think about that for a second. It's almost mind-blowingly ridiculous. The mere accusation that another site was illegal, even though that later turned out to not be true was enough evidence for this judge that STC's actions were illegal. How does a judge who thinks that way keep his job?

The judge also does not seem to understand the nature of the internet or links, or how user generated content works. He seems to think that before anyone can post a link to a website, the owner of that website should need to contact a copyright holder to find out if the posting of that link and the underlying content it points to are legal. Seriously:

When it was suggested in cross examination that it was obvious that the films that you were
posting links to were to links to recent films and that you were helping people to link to
copyright infringing films, you insisted that you couldn’t know if it was infringing copyright, that
the studious might have granted right holder licences to the films of which you had no knowledge. That was certainly true and bound to be true if you didn’t bother to check with the
copyright owners and check you most certainly didn’t.

The judge also takes a movie studio exec at face value, when she tells the court that "piracy" means fewer blockbuster movies -- despite the fact that approximately four times as many movies were made last year than were made 15 years ago. Actual facts don't appear to be this judge's strong suit. He also uses the fact that since the movie industry pays taxes, if it struggles, fewer taxes are paid. But, if that's a crime, then any industry that is declining suddenly can implicate any upstart competition for those same reasons.

The whole thing is both bizarre and scary.

One hopes that, given these rather horrifying details, conflicts of interest and inconsistencies, it will be possible to revisit much of this on appeal.

from the how-so? dept

We've written about the entertainment industry's overly aggressive legal campaign against the owners of SurfTheChannel -- a linking site -- before. Almost exactly three years ago, we wrote about how the private UK anti piracy group, FACT, had helped set up the raid on the offices of Scopelight, a startup creating search technologies. This wasn't a typical police raid: FACT (again, a private organization representing private companies) was allowed to come along for the raid. Scopelight built SurfTheChannel as a search engine that could find video. Some of that video was authorized, some of it was not. However, the two founders, a husband and wife team, Anton Benjamin Vickerman and Kelly-Anne Vickerman, were arrested after this raid and charged with "conspiracy to defraud." Note that they were not charged with copyright infringement. If "conspiracy to defraud" sounds familiar, it's the same vague law that was used against the owner of OiNK (unsuccessfully), against the owner of tv-links.co.uk (also unsuccessfully), and also against the creators of Mulve (don't know what happened to that case). Considering how this has failed in two key cases before, and it didn't look like SurfTheChannel was any different, it seemed unlikely to work here either. And, in fact, there were other serious problems with the case, including the issue that FACT itself (again: private organization) was given the Vickermans' computers.

Unfortunately, however, the court has found Anton guilty of "conspiracy to defraud" for which he faces 10 years in jail. 10 Years. His wife was found not guilty. Of course, FACT and other entertainment industry interests are cheering this on as a huge victory, and promising to use this to stifle all kinds of useful innovation... er, go after any other site they consider to be "pirate" sites, even if those sites have perfectly legitimate and non-infringing uses. The broadness of the law, and the vague and contradictory standards with which it has been applied in the UK should be exceptionally worrying to people -- especially those in the UK. It is no longer safe to try to create a useful service to help people find entertainment content, because you may get raided, private companies may get your computers and you may end up in jail. London has been building itself up as a tech/startup hub of Europe, but with rulings like these, don't be surprised to see entrepreneurs move elsewhere.

from the that-doesn't-seem-right... dept

Last month, we wrote about the lawsuit brought by UK anti-piracy industry group FACT against the company Scopelight and its founders for running a video search engine called Surfthechannel.com. Considering it was simply a video search engine and pointed to content that was both authorized and unauthorized, we wondered how FACT could tell a legit search engine from an illegal one. However, more details on the case are coming to light, and the whole thing seems questionable. Someone, who prefers to remain anonymous, sent along the news that the lawyers for Scopelight have now won the first battle against FACT, and the full decision reveals some rather troubling details about how closely FACT -- a private industry group -- collaborated with the police in the initial investigation, and then FACT's own actions after the police investigation concluded.

It's already troubling enough that a private industry group, involved solely in activities designed to protect a business model, was allowed to work so closely with police in a criminal investigation. FACT alerted the police to potential illegality at Scopelight, which is fine, but from then on FACT was intimately involved in the criminal investigation. When the owners of Scopelight, Anton Benjamin Vickerman and his wife Kelly-Anne Vickerman, had their home raided by the police... FACT came along for the investigation. Not only that, but they had their own private investigator copy information from the Vickerman's computers (exactly what and how much was copied is apparently in dispute). When the Vickerman's were questioned by the police, FACT members took part in the questioning.

It seems troubling enough that private industry reps were allowed to be so closely involved in a criminal investigation where they have clear bias, but it gets worse. The police seized various computers and equipment as part of arresting the Vickerman's, and then allowed FACT employees to inspect the computers and the information found on them -- which, again seems to be granting way too much access to a private group. Then things got even more bizarre: the police gave a bunch of the equipment to FACT to allow FACT to continue to examine the equipment.

A few months after the original raid, investigation and arrest, the police decided that there wasn't enough for criminal charges, and decided not to prosecute the Vickerman's. The police told the Vickerman's their property could be returned, so the Vicerkman's lawyers contacted FACT asking for the equipment back, at which point FACT refused, claiming it was holding onto the equipment because it was considering bringing a civil suit against the Vickermans -- which it eventually did bring.

So beyond the rather stunning close working relationship between the police and a private industry group on a criminal investigation, including handing over evidence to a private party, once the police decided not to prosecute, that private party decided to keep the computer equipment and use it for a civil suit. Thankfully, the court has ruled that this latter decision was improper, and the moment the police decided not to prosecute, the equipment should have been returned. So while this is a victory for Scopelight, it's still a rather stunning revelation of how closely integrated a private industry organization is with criminal investigations, and certainly raises questions as to why such a group should get such access.

from the is-it-like-obscenity? dept

I've had a lot of trouble with courts around the globe pinning blame on search engines for what they find, using a questionable interpretation of the law for "contributory" infringement or "inducing" infringement. Such things leave open such a wide spectrum of questions, it basically puts any search engine at risk. People have questioned in the past why Google isn't targeted the same way The Pirate Bay or Torrentspy were, because functionally they're doing the same thing: they index information and help people find it. Of course, some will say that The Pirate Bay is somehow guilty because of the way it acts towards copyright holders, but since when has attitude changed whether the same action is legal or illegal?

Either way it's beginning to feel like judges are determining what is and what is not contributory infringement in the same way "obscenity" is determined, using Justice Potter Stewart's famous "I know it when I see it" test. This is a bad thing, because while some may claim the extremes are clear (which is certainly questionable) there's a large gray area in the middle that is completely unclear. And having a huge unclear gray area means a lot of potential liability on innovators -- leading fewer people to innovate. And that's undeniably bad.

Take for example, the situation going on in the UK, where Anton Benjamin Vickerman and his wife Kelly-Anne Vickerman decided to do something that makes a lot of sense: create a search engine for videos online, indexing a variety of different sites. This was as a part of their company Scopelight, and the search engine itself was called Surfthechannel. This is certainly a useful product. But, of course, the search engine's algorithm has no way of knowing if that video has been put up by the copyright holder on purpose or if it's unauthorized. Even more tricky, how does it determine fair use? So, it did the reasonable thing: it includes everything. Lots of the videos are legal. Plenty are potentially unauthorized. Apparently that wasn't good enough for a UK-based anti-piracy group UK-FACT, who had Scopelight's premises raided, claiming the site is illegal, since people can find unauthorized content via it. Of course, you can find unauthorized content on Google as well.

But you know who's liable for that? Whoever actually put it online. Not the search engine that pointed you to it.

UK-FACT was unable to get criminal charges filed against SurfTheChannel, but no matter, a civil case has been filed instead. So, once again, a judge is going to have to determine why a third party website can be guilty of others' infringement based on a highly subjective "I know it when I see it" set of reasons. This is a bad deal for everyone.